Professional Documents
Culture Documents
Clerk of Court
THERESA L. KOSAK,
Plaintiff - Appellant,
v.
CATHOLIC HEALTH INITIATIVES OF
COLORADO,
No. 09-1526
(D. Ct. No. 1:08-CV-01505-CMA-MJW)
(D. Colo.)
Defendant - Appellee.
Theresa L. Kosak appeals from the district courts grant of summary judgment in
favor of Catholic Health Initiatives of Colorado (CHI) on her claim of discrimination in
violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et
seq. The district court found that Ms. Kosak failed to produce sufficient evidence to
establish a prima facie case of discrimination. We take jurisdiction pursuant to 28 U.S.C.
1291 and AFFIRM.
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. BACKGROUND
On February 1, 2007, Leah Willey became director of the Patient Access
Department at St. Mary-Corwin Medical Center (SMC), which is owned and operated
by CHI. Ms. Willey was told by SMCs Chief Financial Officer to take whatever action
was necessary to clean up the department and make sure it was running effectively and
properly, including terminating employees if necessary.
Within a week of her hiring, Ms. Willey received several complaints about Ms.
Kosak. Ms. Kosak was a financial counselor in the Patient Access Department and had
been employed at SMC for twenty-six years. As a result of the complaints, Ms. Willey
began investigating Ms. Kosak, speaking to current and former employees and doctors.
Ms. Willey reviewed all of the statements with the Human Resources Department,
including Human Resources Director Rudy Krasovec. Eventually, Ms. Willey and Mr.
Krasovec sat down with Ms. Kosak to discuss the allegations. They did not, however,
provide Ms. Kosak with specific complaints, and they did not ascertain whether the
complaints were in fact true.
After the meeting, Ms. Willey placed Ms. Kosak on administrative leave pending
conclusion of the internal investigation. On April 6, 2007, Ms. Kosaks employment with
SMC was terminated. The termination letter from Mr. Krasovec informed her, we have
determined that your behavior and how you treat others in the department is
unacceptable. At the time of termination she was forty-nine years old. It is undisputed
that she was replaced by a woman of her same age.
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On May 27, 2008, Ms. Kosak filed suit against CHI in state court alleging age
discrimination; violations of the Family Medical Leave Act, Health Insurance Portability
and Accountability Act, and public policy; invasion of privacy; and breach of contract.
CHI later removed the suit to federal court. On May 15, 2009, Ms. Kosak moved for
partial summary judgment on her ADEA claim. CHI filed a cross motion for summary
judgment on all claims. On October 28, 2009, the district court granted summary
judgment to CHI on all of Ms. Kosaks claims. Ms. Kosak now appeals, asserting error
only in the district courts grant of summary judgment on her ADEA claim.
II. DISCUSSION
We review the district courts grant of summary judgment de novo, applying the
same standards as the district court. Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187,
1195 (10th Cir. 2008). We view the facts, and all reasonable inferences those facts
support, in the light most favorable to the nonmoving party. Id. Summary judgment
should be granted when the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2).
Ms. Kosak has not put forth any direct evidence of discrimination; therefore, we
evaluate her ADEA claim using the three-step framework outlined in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 80204 (1973). Jones v. Oklahoma City Pub. Schools,
F.3d , 2010 WL 3310226, at *4*5 (10th Cir. 2010) (upholding the continued
applicability of McDonnell Douglas to ADEA claims after Gross v. FBL Fin. Servs., Inc.,
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U.S. , 129 S. Ct. 2343 (2009)). Under this framework, the plaintiff must initially
establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. If
the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate
some legitimate, nondiscriminatory reason for its action. Id. [S]hould the defendant
carry this burden, the plaintiff must then have an opportunity to prove by a preponderance
of the evidence that the legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination. Texas Dept of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). If a plaintiff fails to establish a prima facie case, however, the
court need not reach the second and third steps and may grant summary judgment in favor
of the defendant. See Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136,
1146 (10th Cir. 2008) (In the absence of facts tending to establish this initial inference,
plaintiff is not entitled to the presumption of discrimination and a defendant is not
required to defend against the charge.). Because Ms. Kosak cannot establish a prima
facie case under the ADEA, we do not address the second or third stages of the
McDonnell Douglas framework.
In order to establish a prima facie case of discrimination under the ADEA, a
plaintiff must ordinarily prove that: (1) she is within the protected age group; (2) she was
doing satisfactory work; (3) she was discharged; and (4) her position was filled by a
younger person. Rivera v. City & Cty. of Denver, 365 F.3d 912, 920 (10th Cir. 2004).
Here, the parties agree, and the district court found, that Ms. Kosak has proven the first
and third elements of her prima facie case. The district court also found the second
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element, whether Ms. Kosak was doing satisfactory work, to be a contested material fact
not properly determined on summary judgment. Nevertheless, the district court granted
summary judgment in favor of CHI because it is undisputed that the woman who replaced
Ms. Kosak was the same age as Ms. Kosak and thus the fourth element was lacking.
On appeal, Ms. Kosak does not argue that she put forth evidence that she was
replaced with a younger person. Instead, she contends that neither the Supreme Court nor
this court requires a showing that the position was filled with a younger person. We have
repeatedly emphasized that an ADEA plaintiff must ordinarily show that her position was
filled by a younger person in order to make a prima facie case of discrimination under the
McDonnell Douglas burden-shifting framework. See, e.g., Miller v. Eby Realty Group
LLC, 396 F.3d 1105, 1111 (10th Cir. 2005); Greene v. Safeway Stores, Inc., 98 F.3d 554,
558 (10th Cir. 1996) (citing Tenth Circuit cases requiring proof that a younger person
replace the plaintiff). Indeed, we have refused to address the extent to which there may
be extraordinary situations when a plaintiff could prove a prima facie case without such
a showing.1 See Greene, 98 F.3d at 55960 (declining to reach the issue because the
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III. CONCLUSION
For the foregoing reasons, we AFFIRM.
ENTERED FOR THE COURT,
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